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Constitutional Structures

Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016)

[excerpt]

Spokeo v. Robbins

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C.J., and KENNEDY, THOMAS, BREYER, and KAGAN, JJ., joined. THOMAS, J., filed a concurring opinion. GINSBURG, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined.

[1] This case presents the question whether respondent Robins has standing to maintain an action in federal court against petitioner Spokeo under the Fair Credit Reporting Act of 1970 (FCRA or Act), 84 Stat. 1127, as amended, 15 U.S.C. § 1681 et seq.

[2] Spokeo operates a “people search engine.” If an individual visits Spokeo’s Web site and inputs a person’s name, a phone number, or an e-mail address, Spokeo conducts a computerized search in a wide variety of databases and provides information about the subject of the search. Spokeo performed such a search for information about Robins, and some of the information it gathered and then disseminated was incorrect. When Robins learned of these inaccuracies, he filed a complaint on his own behalf and on behalf of a class of similarly situated individuals.

[3] The District Court dismissed Robins’ complaint for lack of standing, but a panel of the Ninth Circuit reversed. The Ninth Circuit noted, first, that Robins had alleged that “Spokeo violated his statutory rights, not just the statutory rights of other people,” and, second, that “Robins’s personal interests in the handling of his credit information are individualized rather than collective.” Based on these two observations, the Ninth Circuit held that Robins had adequately alleged injury in fact, a requirement for standing under Article III of the Constitution.

[4] This analysis was incomplete. As we have explained in our prior opinions, the injury-in-fact requirement requires a plaintiff to allege an injury that is both “concrete and particularized.” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-181 (2000). The Ninth Circuit’s analysis focused on the second characteristic (particularity), but it overlooked the first (concreteness). We therefore vacate the decision below and remand for the Ninth Circuit to consider both aspects of the injury-in-fact requirement.

I

[5] The FCRA seeks to ensure “fair and accurate credit reporting.” § 1681(a)(1). To achieve this end, the Act regulates the creation and the use of “consumer report[s]” by “consumer reporting agenc[ies]” for certain specified purposes, including credit transactions, insurance, licensing, consumer-initiated business transactions, and employment. See §§ 1681a(d)(1)(A)-(C); § 1681b. Enacted long before the advent of the Internet, the FCRA applies to companies that regularly disseminate information bearing on an individual’s “credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living.” § 1681a(d)(1).

[6] The FCRA imposes a host of requirements concerning the creation and use of consumer reports. As relevant here, the Act requires consumer reporting agencies to “follow reasonable procedures to assure maximum possible accuracy of” consumer reports, § 1681e(b); to notify providers and users of consumer information of their responsibilities under the Act, § 1681e(d); to limit the circumstances in which such agencies provide consumer reports “for employment purposes,” § 1681b(b)(1); and to post toll-free numbers for consumers to request reports, § 1681j(a).

[7] The Act also provides that “[a]ny person who willfully fails to comply with any requirement [of the Act] with respect to any [individual] is liable to that [individual]” for, among other things, either “actual damages” or statutory damages of $100 to $1,000 per violation, costs of the action and attorney’s fees, and possibly punitive damages. § 1681n(a).

[9] Spokeo is alleged to qualify as a “consumer reporting agency” under the FCRA.[4] It operates a Web site that allows users to search for information about other individuals by name, e-mail address, or phone number. In response to an inquiry submitted online, Spokeo searches a wide spectrum of databases and gathers and provides information such as the individual’s address, phone number, marital status, approximate age, occupation, hobbies, finances, shopping habits, and musical preferences. According to Robins, Spokeo markets its services to a variety of users, including not only “employers who want to evaluate prospective employees,” but also “those who want to investigate prospective romantic partners or seek other personal information.” Persons wishing to perform a Spokeo search need not disclose their identities, and much information is available for free.

[9] At some point in time, someone (Robins’ complaint does not specify who) made a Spokeo search request for information about Robins, and Spokeo trawled its sources and generated a profile. By some means not detailed in Robins’ complaint, he became aware of the contents of that profile and discovered that it contained inaccurate information. His profile, he asserts, states that he is married, has children, is in his 50’s, has a job, is relatively affluent, and holds a graduate degree. According to Robins’ complaint, all of this information is incorrect.

[10] Robins filed a class-action complaint in the United States District Court for the Central District of California, claiming, among other things, that Spokeo willfully failed to comply with the FCRA requirements enumerated above.

[11] The District Court initially denied Spokeo’s motion to dismiss the complaint for lack of jurisdiction, but later reconsidered and dismissed the complaint with prejudice.  The court found that Robins had not “properly pled” an injury in fact, as required by Article III.

[12] The Court of Appeals for the Ninth Circuit reversed. Relying on Circuit precedent, the court began by stating that “the violation of a statutory right is usually a sufficient injury in fact to confer standing.” The court recognized that “the Constitution limits the power of Congress to confer standing.” But the court held that those limits were honored in this case because Robins alleged that “Spokeo violated his statutory rights, not just the statutory rights of other people,” and because his “personal interests in the handling of his credit information are individualized rather than collective.” The court thus concluded that Robins’ “alleged violations of [his] statutory rights [were] sufficient to satisfy the injury-in-fact requirement of Article III.”

[13] We granted certiorari.

II

A

[14] The Constitution confers limited authority on each branch of the Federal Government. It vests Congress with enumerated “legislative Powers,” Art. I, § 1; it confers upon the President “[t]he executive Power,” Art. II, § 1, cl. 1; and it endows the federal courts with “[t]he judicial Power of the United States,” Art. III, § 1. In order to remain faithful to this tripartite structure, the power of the Federal Judiciary may not be permitted to intrude upon the powers given to the other branches. See Lujan v. Defenders of Wildlife (1992).

[15] Although the Constitution does not fully explain what is meant by “[t]he judicial Power of the United States,” Art. III, § 1, it does specify that this power extends only to “Cases” and “Controversies,” Art. III, § 2. And "'[n]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.'”

[16] Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy. The doctrine developed in our case law to ensure that federal courts do not exceed their authority as it has been traditionally understood. The doctrine limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong. See Warth v. Seldin (1975). In this way, “[t]he law of Article III standing … serves to prevent the judicial process from being used to usurp the powers of the political branches,” Clapper v. Amnesty Int’l USA (2013) and confines the federal courts to a properly judicial role.

[17] Our cases have established that the “irreducible constitutional minimum” of standing consists of three elements. Lujan, 504 U.S. at 560. The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.  The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing these elements. Where, as here, a case is at the pleading stage, the plaintiff must “clearly … allege facts demonstrating” each element.

B

[18] This case primarily concerns injury in fact, the “[f]irst and foremost” of standing’s three elements. Injury in fact is a constitutional requirement, and “[i]t is settled that Congress cannot erase Article III’s standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.”

[19] To establish injury in fact, a plaintiff must show that he or she suffered “an invasion of a legally protected interest” that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” We discuss the particularization and concreteness requirements below.

[20] For an injury to be “particularized,” it “must affect the plaintiff in a personal and individual way.”

* * *

[21] Particularization is necessary to establish injury in fact, but it is not sufficient. An injury in fact must also be “concrete.” Under the Ninth Circuit’s analysis, however, that independent requirement was elided. As previously noted, the Ninth Circuit concluded that Robins’ complaint alleges “concrete, de facto” injuries for essentially two reasons. First, the court noted that Robins “alleges that Spokeo violated his statutory rights, not just the statutory rights of other people.” Second, the court wrote that “Robins’s personal interests in the handling of his credit information are individualized rather than collective.” Both of these observations concern particularization, not concreteness. We have made it clear time and time again that an injury in fact must be both concrete and particularized.

* * *

[22] A “concrete” injury must be “de facto”; that is, it must actually exist. See Black’s Law Dictionary 479 (9th ed. 2009). When we have used the adjective “concrete,” we have meant to convey the usual meaning of the term — “real,” and not “abstract.” Webster’s Third New International Dictionary 472 (1971); Random House Dictionary of the English Language 305 (1967). Concreteness, therefore, is quite different from particularization.

[23] “Concrete” is not, however, necessarily synonymous with “tangible.” Although tangible injuries are perhaps easier to recognize, we have confirmed in many of our previous cases that intangible injuries can nevertheless be concrete.

[24] In determining whether an intangible harm constitutes injury in fact, both history and the judgment of Congress play important roles. Because the doctrine of standing derives from the case-or-controversy requirement, and because that requirement in turn is grounded in historical practice, it is instructive to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts. See Vermont Agency of Natural Resources v. United States ex rel. Stevens (2000). In addition, because Congress is well positioned to identify intangible harms that meet minimum Article III requirements, its judgment is also instructive and important. Thus, we said in Lujan that Congress may “elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law.” Similarly, Justice Kennedy’s concurrence in that case explained that “Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before.”

[25] Congress’ role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right. Article III standing requires a concrete injury even in the context of a statutory violation. For that reason, Robins could not, for example, allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III. See Summers, (“[D]eprivation of a procedural right without some concrete interest that is affected by the deprivation … is insufficient to create Article III standing”); see also Lujan.

[26] This does not mean, however, that the risk of real harm cannot satisfy the requirement of concreteness. See, e.g., Clapper v. Amnesty Int’l. For example, the law has long permitted recovery by certain tort victims even if their harms may be difficult to prove or measure. See, e.g., Restatement (First) of Torts §§ 569 (libel), 570 (slander per se) (1938). Just as the common law permitted suit in such instances, the violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact. In other words, a plaintiff in such a case need not allege any additional harm beyond the one Congress has identified.

* * *

[26] In the context of this particular case, these general principles tell us two things: On the one hand, Congress plainly sought to curb the dissemination of false information by adopting procedures designed to decrease that risk. On the other hand, Robins cannot satisfy the demands of Article III by alleging a bare procedural violation. A violation of one of the FCRA’s procedural requirements may result in no harm. For example, even if a consumer reporting agency fails to provide the required notice to a user of the agency’s consumer information, that information regardless may be entirely accurate. In addition, not all inaccuracies cause harm or present any material risk of harm. An example that comes readily to mind is an incorrect zip code. It is difficult to imagine how the dissemination of an incorrect zip code, without more, could work any concrete harm.

[27] Because the Ninth Circuit failed to fully appreciate the distinction between concreteness and particularization, its standing analysis was incomplete. It did not address the question framed by our discussion, namely, whether the particular procedural violations alleged in this case entail a degree of risk sufficient to meet the concreteness requirement. We take no position as to whether the Ninth Circuit’s ultimate conclusion — that Robins adequately alleged an injury in fact — was correct.

* * *

[28] The judgment of the Court of Appeals is vacated, and the case is remanded for proceedings consistent with this opinion.

[29] It is so ordered.


Justice THOMAS, concurring.

[1] The Court vacates and remands to have the Court of Appeals determine “whether the particular procedural violations alleged in this case entail a degree of risk sufficient to meet the concreteness requirement.” In defining what constitutes a concrete injury, the Court explains that “concrete” means “`real,'” and “not `abstract,'” but is not “necessarily synonymous with `tangible.'”

[2] I join the Court’s opinion. I write separately to explain how, in my view, the injury-in-fact requirement applies to different types of rights. The judicial power of common-law courts was historically limited depending on the nature of the plaintiff’s suit. Common-law courts more readily entertained suits from private plaintiffs who alleged a violation of their own rights, in contrast to private plaintiffs who asserted claims vindicating public rights. Those limitations persist in modern standing doctrine.

I

A

[3] Standing doctrine limits the “judicial power” to “`cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process.'” Vermont Agency of Natural Resources v. United States ex rel. Stevens (2000). To understand the limits that standing imposes on “the judicial Power,” therefore, we must “refer directly to the traditional, fundamental limitations upon the powers of common-law courts.” Honig v. Doe (1988) (Scalia, J., dissenting). These limitations preserve separation of powers by preventing the judiciary’s entanglement in disputes that are primarily political in nature. This concern is generally absent when a private plaintiff seeks to enforce only his personal rights against another private party.

[4] Common-law courts imposed different limitations on a plaintiff’s right to bring suit depending on the type of right the plaintiff sought to vindicate. Historically, common-law courts possessed broad power to adjudicate suits involving the alleged violation of private rights, even when plaintiffs alleged only the violation of those rights and nothing more. * * *   In a suit for the violation of a private right, courts historically presumed that the plaintiff suffered a de facto injury merely from having his personal, legal rights invaded.

* * *

[5] Common-law courts, however, have required a further showing of injury for violations of “public rights” — rights that involve duties owed “to the whole community, considered as a community, in its social aggregate capacity.”

* * *

[6] Generally, only the government had the authority to vindicate a harm borne by the public at large, such as the violation of the criminal laws. Even in limited cases where private plaintiffs could bring a claim for the violation of public rights, they had to allege that the violation caused them “some extraordinary damage, beyond the rest of the [community].”

* * *

[7] These differences between legal claims brought by private plaintiffs for the violation of public and private rights underlie modern standing doctrine and explain the Court’s description of the injury-in-fact requirement. “Injury in fact” is the first of three “irreducible” requirements for Article III standing. Lujan v. Defenders of Wildlife (1992). The injury-in-fact requirement often stymies a private plaintiff’s attempt to vindicate the infringement of public rights. The Court has said time and again that, when a plaintiff seeks to vindicate a public right, the plaintiff must allege that he has suffered a “concrete” injury particular to himself.

* * *

[8] This requirement applies with special force when a plaintiff files suit to require an executive agency to “follow the law”; at that point, the citizen must prove that he “has sustained or is immediately in danger of sustaining a direct injury as a result of that [challenged] action and it is not sufficient that he has merely a general interest common to all members of the public.” Thus, in a case where private plaintiffs sought to compel the U.S. Forest Service to follow certain procedures when it regulated “small fire-rehabilitation and timber-salvage projects,” we held that “deprivation of a procedural right without some concrete interest that is affected by the deprivation… is insufficient to create Article III standing,” even if “accorded by Congress.” Summers v. Earth Island Institute (2009).

* * * *

[9] The separation-of-powers concerns underlying our public-rights decisions are not implicated when private individuals sue to redress violations of their own private rights. But, when they are implicated, standing doctrine keeps courts out of political disputes by denying private litigants the right to test the abstract legality of government action. And by limiting Congress’ ability to delegate law enforcement authority to private plaintiffs and the courts, standing doctrine preserves executive discretion.

* * *

[10] But where one private party has alleged that another private party violated his private rights, there is generally no danger that the private party’s suit is an impermissible attempt to police the activity of the political branches or, more broadly, that the legislative branch has impermissibly delegated law enforcement authority from the executive to a private individual. See Hessick, Standing, Injury in Fact, and Private Rights, 93 Cornell L. Rev. 275, 317-321 (2008).

C

[11] When Congress creates new private causes of action to vindicate private or public rights, these Article III principles circumscribe federal courts’ power to adjudicate a suit alleging the violation of those new legal rights. Congress can create new private rights and authorize private plaintiffs to sue based simply on the violation of those private rights. See Warth v. Seldin (1975). A plaintiff seeking to vindicate a statutorily created private right need not allege actual harm beyond the invasion of that private right.

* * *

[12] A plaintiff seeking to vindicate a public right embodied in a federal statute, however, must demonstrate that the violation of that public right has caused him a concrete, individual harm distinct from the general population.

* * *

[13] Thus, Congress cannot authorize private plaintiffs to enforce public rights in their own names, absent some showing that the plaintiff has suffered a concrete harm particular to him.

II

[14] Given these principles, I agree with the Court’s decision to vacate and remand. The Fair Credit Reporting Act creates a series of regulatory duties. Robins has no standing to sue Spokeo, in his own name, for violations of the duties that Spokeo owes to the public collectively, absent some showing that he has suffered concrete and particular harm. These consumer protection requirements include, for example, the requirement to “post a toll-free telephone number on [Spokeo’s] website through which consumers can request free annual file disclosures.” see 15 U.S.C. § 1681j; 16 CFR § 610.3(a)(1) (2010).

[15] But a remand is required because one claim in Robins’ complaint rests on a statutory provision that could arguably establish a private cause of action to vindicate the violation of a privately held right. Section 1681e(b) requires Robins to “follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” § 1681e(b). If Congress has created a private duty owed personally to Robins to protect his information, then the violation of the legal duty suffices for Article III injury in fact. If that provision, however, vests any and all consumers with the power to police the “reasonable procedures” of Spokeo, without more, then Robins has no standing to sue for its violation absent an allegation that he has suffered individualized harm. On remand, the Court of Appeals can consider the nature of this claim.


Justice GINSBURG, with whom Justice SOTOMAYOR joins, dissenting.

[1] In the Fair Credit Reporting Act of 1970 (FCRA or Act), 15 U.S.C. § 1681 et seq., Congress required consumer reporting agencies, whenever preparing a consumer report, to “follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” § 1681e(b). To promote adherence to the Act’s procedural requirements, Congress granted adversely affected consumers a right to sue noncomplying reporting agencies. § 1681n (willful noncompliance); § 1681o (negligent noncompliance).Thomas Robins instituted suit against Spokeo, Inc., alleging that Spokeo was a reporting agency governed by the FCRA, and that Spokeo maintains on its Web site an inaccurate consumer report about Robins.

[2] In particular, Robins alleged that Spokeo posted “a picture … purport[ing] to be an image of Robins [that] was not in fact [of him],” and incorrectly reported that Robins “was in his 50s, … married, … employed in a professional or technical field, and … has children.” Robins further alleged that Spokeo’s profile of him continues to misrepresent “that he has a graduate degree, that his economic health is `Very Strong[,]’ and that his wealth level [is in] the `Top 10%.'” Spokeo displayed that erroneous information, Robins asserts, when he was “out of work” and “actively seeking employment.” Because of the misinformation, Robins stated, he encountered “[imminent and ongoing] actual harm to [his] employment prospects.” As Robins elaborated on brief, Spokeo’s report made him appear overqualified for jobs he might have gained, expectant of a higher salary than employers would be willing to pay, and less mobile because of family responsibilities.

[3] I agree with much of the Court’s opinion. Robins, the Court holds, meets the particularity requirement for standing under Article III. The Court acknowledges that Congress has the authority to confer rights and delineate claims for relief where none existed before.

* * *

[4] But Congress can create new individual rights, and it can enact effective remedies for those rights.

[5] I part ways with the Court, however, on the necessity of a remand to determine whether Robins’ particularized injury was “concrete.” Judged by what we have said about “concreteness,” Robins’ allegations carry him across the threshold. The Court’s opinion observes that time and again, our decisions have coupled the words “concrete and particularized.” citing as examples, Susan B. Anthony List v. Driehaus (2014); Summers v. Earth Island Institute (2009); Sprint Communications Co. v. APCC Services, Inc. (2008); Massachusetts v. EPA (2007). True, but true too, in the four cases cited by the Court, and many others, opinions do not discuss the separate offices of the terms “concrete” and “particularized.”

[6] Inspection of the Court’s decisions suggests that the particularity requirement bars complaints raising generalized grievances, seeking relief that no more benefits the plaintiff than it does the public at large.

* * *

[7] Robins’ claim does not present a question of that character. He seeks redress, not for harm to the citizenry, but for Spokeo’s spread of misinformation specifically about him.

[8] Concreteness as a discrete requirement for standing, the Court’s decisions indicate, refers to the reality of an injury, harm that is real, not abstract, but not necessarily tangible.

* * *

[9] Robins would not qualify, the Court observes, if he alleged a “bare” procedural violation, ante, at 1549, one that results in no harm, for example, “an incorrect zip code.” Far from an incorrect zip code, Robins complains of misinformation about his education, family situation, and economic status, inaccurate representations that could affect his fortune in the job market. See Brief for Center for Democracy & Technology et al. as Amici Curiae 13 (Spokeo’s inaccuracies bore on Robins’ “ability to find employment by creating the erroneous impression that he was overqualified for the work he was seeking, that he might be unwilling to relocate for a job due to family commitments, or that his salary demands would exceed what prospective employers were prepared to offer him.”); Brief for Restitution and Remedies Scholars et al. as Amici Curiae 35 (“An applicant can lose [a] job for being over-qualified; a suitor can lose a woman if she reads that he is married.”). The FCRA’s procedural requirements aimed to prevent such harm. See 115 Cong. Rec. 2410-2415 (1969). I therefore see no utility in returning this case to the Ninth Circuit to underscore what Robins’ complaint already conveys concretely: Spokeo’s misinformation “cause[s] actual harm to [his] employment prospects.”

* * *

[10] For the reasons stated, I would affirm the Ninth Circuit’s judgment.